The Jury Is In: Shun “Instant,” “Implicate,” and “Absent”—But Keep “Chilling Effect”

Which words bug your fellow attorneys and judges? In the last newsletter, I polled thousands of readers on what they think of “absent,” “ambit,” “instant,” and other language that Judge Posner and others have scorned. Find out which words get a thumbs-down—and which words your colleagues propose in their place.

Here are the results, from most hated to least:

#1. Instant – 3% approval.

Almost no one likes “instant,” as in “the instant case” or “the instant transaction.”

“This” was the most popular alternative, as in “this case.”

“Present” was the runner-up, with 21% approving. I myself prefer “here” to “in the present case.”

#2. Implicate – 10% approval.

My readers see vague implications in “implicate” and propose substitutes galore.

“Raise,” as in “raises privacy concerns,” was favored by 32%.

And “involve,” which to me is also vague, was preferred by another 13%.

#3. Absent – 13% approval.

“Without” won a whopping 65% approval as a replacement.

“In the absence of” took 18%. Yes, 18% of my readers would rather use four words than that odious single word “absent.”

#4. Ambit – 15% approval.

Readers call “ambit” both obscure and pretentious.

“Scope,” at 54%, was the clear crowd favorite.

“Area” and “bounds” both received 12% approval.

#5. Facially – 15% approval.

“On its face” was backed by 46% of my readers, who are no fans of half-baked adverbs. So “invalid on its face,” not “facially invalid.”

Another 12% of readers sided with “appears,” but just as many found “facially” superfluous.

#6. Progeny – 26% approval.

Although Posner and Scalia have many other disputes, Scalia, too, has railed against “progeny.” “And cases following it,” at 16%, was the most popular alternative when “progeny” is used for a line of cases. But what about “and subsequent cases”? Does that not make it clear that the later cases applied the first one?

#7. Prong – 27% approval.

Readers did not love this word, but they also had a hard time finding anything better.

“Factor” and “part” both seized 31% approval, as in “a three-part test.” I like them, too.

#8. Chilling effect – 65% approval.

“Chilling effect” was the only phrase in our poll that won a majority of my readers’ love, though even those happy souls prefer to limit the phrase to First Amendment contexts.

“Discourage” was preferred by 29% of readers.

And “chill” (as a verb, and not in the teenager sense of the word) curried favor with another 11%.

Do you have your own legal term or convention that you’d like me to poll next time? Just email me at and put “poll question” in the subject line.

Order Point Made

Order Point Taken

Order Deal Struck